Indian Legal System

Fundamentals of Law and

Legal Systems
2018-19

Dr. R. Rajesh Babu

[email protected]
Office: B-209, Old Acad Block
  Ignorantia juris non excusat

Ignorance of law is no excuse: you can't

defend your actions by arguing you didn't
know they were illegal. This is true even if
you really didn't realize you broke the law!
 The reason why [Law] is a profession, … , is that in
societies like ours the command of the public force is
entrusted to the judges in certain cases, and the whole
power of the state will be put forth, if necessary, to carry
out their judgments and decrees. People want to know
under what circumstances and how far they will run the
risk of coming against what is so much stronger than
themselves, and hence it becomes a business to find out
when this danger is to be feared. The object of our study,
then, is prediction, the prediction of the incidence of the
public force through the instrumentality of the courts.

 Oliver W. Holmes, The Path of the Law, 10 Harvard Law Review 457
(1897)

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Law’s Role in the Value Chain: Law does more than
regulate and constrain. It also enables and facilitates
Cost of litigation
 2008 survey: 36 US companies spend a total of US$ 4.1
billion on litigation
 India: More than 1,800 listed companies collectively spent
about Rs 21,906 crore during the fiscal year 2013-14 (ET)
 Reliance Industries - Rs. 876 crore
 Ranbaxy Lab - Rs 844.54 crore
 TCS - Rs 613 crore
 L&T - Rs. 526 crore
 Infosys - Rs. 504 crore
 Amazon India - Rs. 221 crore
 Outline of the Sessions

 Fundamentals of Law and Legal Systems

 Law of Contract and special contracts
 Company law
 Product Liability and Consumer Protection
Laws
 Intellectual Property Rights
 Commercial Dispute Resolution
Contents
 ‘Law’ and Legal Systems
 Indian Legal System
 Constitution as a framework for Indian Legal
System
 Fundamental Rights and Freedoms

 Constitutional Remedies

 Hierarchy of Laws and Courts

“Law, like war, appears to be an inescapable
fact of the human condition”

“Law” defined – no agreed definition

 Law is an officially recognized, enforceable system
of rules.
 Natural law vs. Positive law

General characteristic of Law

1. System of rules made by the state,
2. To regulate behavior in a society
3. Imposed and enforcement by the Sovereign (State)
Are all norms ‘law’?
 Rules made by the Sovereign/State:
 Acts of the Parliament/legislature. Are Order, bylaws,
etc., ‘law’?

 Rules made outside the legal system:

 Contract; Memorandum and Articles of association of a
company; Rules of a trade unions; Rules of cooperative
societies etc.

 Rules that are not part of law:

 Rules of private clubs; cricket rules, Rules within family
etc.
Law vs. Morality

 Law is the collective morality of society

 Can there be ‘law’ devoid of morality?
 Universally recognized values/HR?
 Apartheid?

 Nuremberg trial: crime against humanity!

 Can ‘law’ encroach on ‘right to privacy’ in the

name of morality/religion?
 Abortion; homosexuality; euthanasia!!!
Car: 2000 lbs for $2000
Nothing else would compete with Datsun & VW

Product Objectives:

23 months to roll-out (not 45)

1. True Subcompact : Size & Weight

2. Low Cost of Ownership
Initial price, Fuel consumption, Reliability
Serviceability
3. Clear Product Superiority
Appearance, Comfort, Features, Ride and Handling,
Performance

Watch:
https://www.youtube.com/watch?v=PAI5T8UecEY
Gas Tank
Behind Rear-Axle Tank
Pros:
 More Luggage space
 Industry standard – felt it was safer
Con: Not as safe in rear-end collisions

Over-the-axle-tank
Pro: Performed well in rear-end collisions
Cons:
Long “round-about” filler pipe
Closer to passengers in back seat
Higher center of gravity
Reduced trunk space
Cost/Benefit Analysis: Ford Pinto
 Savings:  Sales
 180 burn deaths, 180  11 million cars, 1.5
serious burn injuries, 2100 million light trucks
burned vehicles
 Unit Cost
 Unit Cost
 $11 per car, $11 per
 $200,000 per death,
$67,000 per injury, $700 truck
per vehicle  Total Cost
 Total Benefit  12.5 million X $11 =
 (180 X $200,000) + (180 X $137.5 million
$67,000) + (2,100 X $700)
= $49.5 million

 Ford Pinto, “Lee’s

 $137.5 million Car”: 2000 lbs for
 $49.5 Million $2000
 Difference $ 88.0 mil
 Grimshaw v. Ford Motor Co.
(1981) 119 CA3d 757

 Richard Grimshaw
 13-year old passenger in “Sandra Gillespie’s” 1971
Pinto
 Struck from behind; exploded; badly burned over 90% of
his body; 20 years reconstructive surgery.
 Awarded $125 million in punitive damages

 $124 million profits made since Ford Pinto’s

introduction
What is a legal system?
 Set of legal principles and norms to protect and
promote a secure living in a society.
 It recognizes rights and duties of people and
provides the ways and means of enforcing the
same.
 193+ countries = 193+ legal systems
 Different legal systems may have different sets of
principles and values, making it different from one
another.
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Different types of legal systems
 Common law: case-centred and hence judge-
centred, allowing scope for a discretionary,
pragmatic approach to the particular problems
that appear before the courts (UK and US)
 Civil law: statute based - codified body of
general abstract principles which control the
exercise of judicial discretion (Continental
Europe, Japan etc)
 Religious law ("Sharia"): Religious law (KSA)
 International Legal system: Law of nations -
Res Nullius (Terra Nullius) and Res Communis
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Civil law
Common law
Bijuridical (civil and common law)
Customary law
Islamic Law 18
Foundation of Legal Systems
1. Presumption of Innocence
2. Double Jeopardy
3. Self incrimination
4. Ex Post Facto law
5. Principles of Natural Justice – (i) “no one can be a
judge in his own cause” (rule against Bias) , and (ii)
the right to a fair hearing (audi alteram partem)

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 Indian Legal System
 Common Law traditions, and
religious/customary norms in personal law.
 Indian Constitution provides the general
Framework for the distribution of the power
between three branches of Government;
between States; and
 Rights and Duties of the citizens vis-à-vis
the State, and Remedies for violations
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Indian Constitution: Division of Powers and the
power to enact laws
 Union List. Parliament competent to make laws.
 State list: exception where Parliament could legislate:
Appointment of Governors (Arts. 155 and 156); National
Interest (Art. 249), Form new State, alter boundaries (Art.
3) and Emergency Powers (Arts, 352, 356 and 360)
 Concurrent list: Laws passed by parliament shall prevail
over law made by State (doctrine of eclipse).
 Residue list: On matters not included in the State List or the
Concurrent List, only Parliament can legislate.

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Hierarchy of Laws
Act/Rules
ultra virus the
The Constitution Constitution is
VOID

Act’s of Parliament and States

Subordinate legislation
Executive Laws through delegated Power
(Rules, Bylaws, Regulations, Orders)
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Applicability of Laws
 Laws made by Parliament may extend
throughout or in any part of the territory of
India
 State laws apply only within its territory.
Hence, variations are likely to exist between
State in provisions of law relating to matters
falling in the State and Concurrent Lists.
 Whether law made by Parliament applicable to
the State of J&K?

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Rights and Duties of Individuals (Part III and
IV)
 Fundamental Rights (Part III)– Prohibition against
the State from taking away or abridging any of these
rights
 Directive Principles of State Policy (Part IV) –
contains the aim and objectives to be taken up by the
states in the governance of the country
 Fundamental Duties of the Citizens (Part IVA)
 Justifiable and non-justifiable

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 Fundamental Rights (Part III)

 Right to equality (Arts 14-18):

 Right to freedoms (Arts 19-22)
 Right against Exploitation (Arts 23-24)
 Right to freedom of Religion (Arts 25- 28)
 Cultural and educational rights (Arts 29-30)
 Right to Constitutional Remedies (Arts 32-35)

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 Article 21 reads as:

 “No person shall be deprived of his life or

personal liberty except according to
a procedure established by law.”

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Equality before law (Arts 14-18):

 Among equals, the law should be equal

and should be equally administered – “like
should be treated alike”.
 Permits “reasonable” classification
Eg. Reservations in public employment;
education; special provisions for women
Does a Company enjoy fundamental right?

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Freedom of Trade or Business (Art 19(1)(g))

 Guarantees all citizens the right to “practice any

profession, or to carry on any occupation, trade or
business.
 Available only for ‘citizens’ not ‘persons’
 Freedom of Trade, Commerce and Intercourse
(Art. 301-307) – ensures removal of impediments
in the way of inter-state and intra-state trade (can
be claimed by anyone, including corporate person)

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Reasonable restrictions –Art 19 (6)
 ‘In the interest of general public’ - public order,
public health, public security, morals, economic
welfare of the community and the objects
mentioned in Part IV of the constitution

 Prescribing professional or technical

qualifications

 State monopolies: enabling the State to carry on

any trade or business to the exclusion of citizens
wholly or partially (added by the 1st Amendment)

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Some illustrations/cases were freedom of
trade or business was involved….
 Regulation and prohibition of liquor
 Closure of non-profit making industry
 “State lotteries not trade or business, but
gambling”
 Act guaranteeing minimum wages or
closing of shops for a day in a week;
 clean environment – MC Mehta cases

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Constitutional Remedies or Enforcement of
Fundamental Rights
 Writ Jurisdiction
 Any person could approach the Supreme Court
(Art. 32) or the High Court (Art. 226) on
violation of fundamental rights.
 Habeas corpus, Mandamus, Prohibition, Quo
warranto and Certiorari
 Remedies are available against the “State” not
against ‘Individuals’ or companies etc.
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 Supreme Court

Jurisdiction
1. Pecuniary, Subject matter,
Precedent
and Territorial High Courts
2. Original, Appellate and Stare decisis
Advisory Obiter dicta

District and Sessions Courts

Civil Judge (Senior Division) Chief Judicial Magistrate

Civil Judge (Junior Division) Judicial Magistrate

(CPC) (CrPC)
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Special Courts and Tribunals
 Company Law Board
 Central Administrative Tribunals (CAT)
 State Administrative Tribunals
 Consumer Courts
 Motor Vehicle Claims Tribunal (MACT)
 Family Courts
 Debts Recovery Tribunal
 Inter-State Water Dispute Tribunal (Cauvary)

Article 136, Supreme Court can entertain Special Leave Petition

(SLP)

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Right to Property
 Article 19f of the Constitution guaranteed a citizen, the
fundamental right to acquire hold and dispose of
property.
 Article 31 - Cannot be deprived of property unless it was
acquired by the State, under a law (Eminent Domain).
 Property owned by an individual or a firm could be
acquired by the State only for public purposes and upon
payment of compensation determined by the law.
 Article 31 has been modified six times -- beginning with
the First amendment in 1951 -- progressively curtailing
this fundamental right. Finally in 1978, Article 19f was
omitted and Article 31 repealed by the 44th Amendment
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 Article 300A was introduced in Part XII making
the right to property only a legal right (no more a
fundamental right).
 This provision implies that the executive arm of
the government (civil servants and the police)
could not interfere with the citizen's right to
property.
 However, Parliament and state legislatures had the
power to make laws affecting the citizens' right to
property.

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Why…?
 Article 39 (b) and (c) of the Directive Principles
of State Policy that required equitable distribution
of resources of production among all citizens and
prevention of concentration of wealth in the hands
of a few.
 The SC struck down the land reforms laws saying
that they transgressed the fundamental right to
property guaranteed by the Constitution.
 Parliament reacted by relegating property rights
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 Further readings:

1. J.N. Pandey, Constitution of India (2006) (for basic

understanding)
2. Indian Legal System, Indian Law Institute 2007
3. D.D. Basu, Shorter Constitution of India, 1994.

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